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2015 DIGILAW 975 (KAR)

Manisha, Oil Enterprises v. State Bank of India

2015-08-21

RATHNAKALA

body2015
ORDER : Rathnakala, J. No representation for the respondent. The petitioner herein is the judgment-debtor before the Executing Court in Execution No. 214 of 2014 on the file of Civil Judge and Judicial Magistrate First Class, Chitradurga. The decree-holder/plaintiff/State Bank of India had filed a suit against the petitioner for recovery of money and the suit came to be decreed. During the execution proceedings, the judgment-debtors filed application I.A. No. 4 at Annexure-L and took up objection on preliminary decree as the same being null and void, and without jurisdiction. The Court below did not entertain the said submission on the ground that, the Executing Court cannot go beyond the decree and cannot examine the validity or otherwise of the decree except executing the same. Accordingly, it proceeded to issue process against the judgment-debtor for sale of the immovable property. 2. The amendment brought to the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, as per Section 31-A, which was amended, reads thus: "31-A. Power of Tribunal to issue certificate of recovery in case of decree or order.-(1) Where a decree or order was passed by any Court before the commencement of the Recovery of Debts Due to Banks and Financial Institutions (Amendment) Act, 2000 and has not yet been executed, then, the decree-holder may apply to the Tribunal to pass an order for recovery of the amount. (2) On receipt of an application under sub-section (1), the Tribunal may issue a certificate for recovery to a Recovery Officer. (3) On receipt of a certificate under sub-section (2), the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act." 3. The Apex Court in the judgment in the matter of Punjab National Bank, Dasuya v. Chajju Ram and Others, AIR 2000 SC 2671 : (2000)6 SCC 655 , held that, when the amount due for which decree is sought to be executed exceeds Rs. 10 lakhs, it is the Tribunal, which has the jurisdiction and not the Civil Court to entertain an application for execution of the decree. Since the present petition is filed for recovery of Rs. 18,32,525/-, the Civil Court has no jurisdiction to execute the decree. 10 lakhs, it is the Tribunal, which has the jurisdiction and not the Civil Court to entertain an application for execution of the decree. Since the present petition is filed for recovery of Rs. 18,32,525/-, the Civil Court has no jurisdiction to execute the decree. The Presiding Officer of the Executing Court has denied to address the objection raised by the judgment-debtor by presuming that he has no authority to decide the validity or otherwise of a decree. The concerned Court thereby is in omission in not exercising its jurisdiction vested with it under Section 47 of Civil Procedure Code, 1908. The Executing Court cannot act as a mere robot; the power of the Executing Court is enshrined by catena of judgments of the Apex Court. Sunder Dass v. Ram Parkash, AIR 1977 SC 1201 : (1977) 2 SCC 662 ; Raghunath Pradhani v. Damodra Mahayatra and Others, AIR 1978 SC 1820 : (1979) 1 SCC 508 ; Indian Bank v. M/s. Satyam Fibres (India) Private Limited, AIR 1996 SC 2592 : (1996) 5 SCC 550 ; Smt. Tara Bai v. V.S. Krishnasivamy Rao, ILR 1985 Kar. 2930 : AIR 1985 Kant. 270; Jai Narain Ram Lundia v. Kedar Nath Khetan and Others, AIR 1956 SC 359 : 1956 SCR 62 and Mulraj v. Murti Ragkunathji Maharaj, AIR 1967 SC 1386 : (1967) 3 SCR 84 . 4. The judgment-debtor has raised the question of fraud played on him; suit being barred by limitation and the nullity of the decree, etc., in its objection statement, which is not looked into. However, when it is found that the Executing Court has no jurisdiction in the light of the judgment of the Apex Court in Punjab National Bank's case, it is inevitable to set aside the order dated 24-12-2005 at Annexure-J2 and the order dated 31-8-2013 at Annexure-L2. Accordingly, the writ petition is allowed. The order dated 24-12-2005 as at Annexure-J2 and the order dated 31-8-2013 at Annexure-L2 passed in Ex. No. 214/2004 by the Senior Civil Judge at Chitradurga, are hereby set aside. The concerned Court is directed to consider I.A. No. 4 produced at Annexure-L filed by the judgment-debtor and reconsider and dispose of the application in accordance with law.